QMI Agency

The Supreme Court of Canada said in a ruling Thursday that it's not a crime for a man to threaten to kill his girlfriend if that's the way he normally talks to her.

The court ruled in a split 4-3 decision that it is essential for the threat to be examined in the context of who it was spoken to in order to qualify as a criminal offense.

"It is not an essential element of the offence ... that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously," the judges wrote in their decision. "All that needs to be proven is that they were intended by the accused to have that effect.

"Here, the trial judge was left with a reasonable doubt in that regard."

During a 2010 recorded phone conversation with his ex-girlfriend while he was already in jail for uttering threats to someone else, Kelly Joseph O'Brien threatened to kill her if she went ahead with her plans to abort his child.

The girlfriend testified she did not take the threats seriously because "that's the way he normally talks."

The trial judge "quite properly 'felt bound to consider the words (uttered by Mr. O'Brien) in the context of the evidence of (the person to whom they were directed),'" the Supreme Court said.

O'Brien was acquitted at trial.

The Crown appealed the acquittal, which was upheld by the Manitoba Court of Appeal before the Crown brought the appeal to the Supreme Court.